Marriage Equality Is Coming. The South Should Get On Board.

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By
Jill Filipovic

May 21, 2014

As of this week, adults across the entire Northeast can marry whomever they want, regardless of gender. Thanks to yesterday's decision striking down laws against same-sex marriage in Pennsylvania, 19 states have now done away with laws restricting marriage to opposite-sex unions, and one whole arm of the country now embraces marriage equality. More states are certainly coming — a recent Gallup poll shows that a majority of Americans support the right of same-sex couples to marry, with the strongest support among young people. Equal marriage rights nationwide look more and more like an inevitability. Unfortunately, Southern states will likely be the final holdouts, continuing the conservative tradition of reluctance or outright hostility to changing social norms and basic human equality.

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The American South's failure to voluntarily end slavery, Jim Crow laws, and school segregation made it an international disgrace many times over. The North is far from prejudice-free — many of the country's most segregated schools remain above the Mason-Dixon line — but the history of discrimination in America is repeatedly characterized by a Southern-state cling to the legal enshrinement of unequal treatment. Marriage equality will have its own chapter in the history books, and it looks like the South is set, yet again, to play the role of the villain.

It doesn't have to be this way. Advocates for LGBT rights live in all 50 states; so do people who just want to marry the one they love. The South is the only region of the United States where support for equal marriage rights remains below 50 percent, but it's getting higher with every survey, and it's only a few percentage points away from tipping into the majority. At some point in the not-so-distant future, the United States Supreme Court will have the opportunity to rule on same-sex marriage. Given the already-shifted social tides, there's little doubt that the highest court, too, will get on board and ride the wave to its end.

Southern states have two choices: They can pass marriage equality laws now, or they can wait for the inevitable defeat of the bans they have on the books. The Republican Party, which has the strongest support in the South, would be smart to embrace marriage equality now instead of waiting on the sidelines. Today's GOP is the party of old white people; it's losing young voters, 8 in 10 of whom support same-sex marriage rights. Young voters of color, a rapidly expanding group, are especially likely to support Democrats. While appealing to the prejudices of many elderly white Southerners may score Republican candidates votes right now, neither old conservatives nor white people are growing constituencies. If the GOP wants to show it's a party of equal opportunity, family values, and modernity, it needs to embrace the policy positions that promote those very ideals.

The "family values" piece is particularly salient. Just a few years ago, "Think of the children!" was an argument anti-marriage-equality proponents made in court. Today, it's the marriage-equality side imploring courts and voters to consider the best interests of children of same-sex couples and LGBT kids themselves, emphasizing that laws barring same-sex marriage tells the children of those unions that their families are second-rate or, worse, means one parent has no legal rights to his or her child. That concern came out in the latest Pennsylvania decision, with the judge writing:

"For those couples who have had children, like Dawn Plummer and Diana Polson, the non-biological parent has had to apply for a second-parent adoption. Dawn expresses that she and Diana are presently saving money so that she can legally adopt their second son, J.P. Until the adoption is complete, she has no legal ties to J.P., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and functioned as a married couple long before having him. Christine Donato, who together with Sandy Ferlanie completed a second-parent adoption in similar circumstances, describes the process as 'long, expensive, and humiliating.' The couples choosing to adopt, like Fernando Chang-Muy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second-parent adoption. For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. In the words of Deb Whitewood, 'It sends the message to our children that their family is less deserving of respect and support than other families. That's a hurtful message.'"

That opinion is worth a full read. In describing the plaintiffs, Hon. John E. Jones III designates each section according to a line from traditional wedding vows — "For better, for worse" highlighting the couples' joys in marriage and combining households, and the attendant heartbreak when marital laws threw up roadblocks; "For richer, for poorer" spelling out the myriad ways Pennsylvania's ban on same-sex marriage made the couples financially and legally vulnerable; "In sickness and in health" illustrating the anxieties couples faced when their partner fell ill and they had few rights; "Until death do us part" telling the story of a widow who quit her job to care full-time for her ailing wife, only to see the "surviving spouse" section of the death certificate left blank, her wife listed as "never married," and the widow herself designated the "informant," because Pennsylvania wouldn't recognize the women's Massachusetts marriage.

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The fight for marriage equality has quickly become one of moral urgency, on par with movements for the right of women to vote and the end of segregation and anti-miscegenation laws. Continued conservative obstinacy across Republican strongholds in the South and parts of the Midwest means the loudest opponents of same-sex marriage run the risk of being this generation's Bull Connor, Alabama's brutal enforcer of segregation — not, as anti-gay activists imagine themselves, determined stalwarts wheezing out the last gasps of moral clarity, but rather sputtering, angry exhibitionists, eliciting a kind of contemptuous pity from people looking on and wondering, How can people dedicate themselves so fully to such ugliness?

More and more politicians are getting wise to the consequences of standing in the way of equality. Less than a decade ago, same-sex marriage was a political wedge issue maneuvered by Republicans to shore up votes. Now, opposing marriage equality is a liability — even Pennsylvania's Republican governor won't be appealing this latest ruling. Judges, too, realize their role in this evolving issue matters. Americans like to think of the law as a static entity, set in stone and applied fairly across the board. In fact, the American legal system was premised on growing, developing, and correcting itself. We like to think that in the face of injustice, the courts (and our Supreme Court, in particular) swoop in to right the wrongs. In fact, nearly every major legal victory for equality from Brown v. Board of Education to Roe vs. Wade was precipitated by years of on-the-ground work by activists to significantly shift state law and public opinion. The Supreme Court came in to put on the final legal touches. Marriage equality is set to receive the same treatment.

Some judges, including Judge Jones in Pennsylvania, rightly see that these are legacy-making cases. Apparently determined not only to be on the right side of history but to contribute one of its more stirring entreaties, Jones concludes his opinion with this:

"The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of 'separate but equal.' ... In the sixty years since Brown was decided, 'separate' has thankfully faded into history, and only 'equal' remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

Just like laws putting limits on gender and racial discrimination didn't end sexism or racism, full rights and liberties for LGBT Americans won't be secured through marriage equality alone. Laws on the books don't wipe out centuries of oppression. But they are the necessary starting point. And if more conservative states refuse to even come to the starting blocks, they're going to get left in the dust.